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The Premenstrual Defendant: Should She Be Held Fully Responsible for Her Criminal Actions?

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The Premenstrual Defendant: Should She Be Held Fully Responsible for Her Criminal Actions? THE PREMENSTRUAL DEFENDANT: SHOULD SHE BE HELD FULLY RESPONSIBLE FOR HER CRIMINAL ACTIONS? A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2019 CAROLINE HENAGHAN SCHOOL OF SOCIAL SCIENCES LAW List of Contents Abstract ............................................................................................................................. 4 Declaration ........................................................................................................................ 5 Copyright Statement ......................................................................................................... 5 Dedication ......................................................................................................................... 6 Acknowledgements ........................................................................................................... 7 The Author ........................................................................................................................ 8 INTRODUCTION…….. ................................................................................................. 9 Introducing 'The Premenstrual Defendant' ........................................................................ 9 CHAPTER ONE - The Premenstrual Defendant: Her Story So Far ....................... 17 1.1 A prologue ................................................................................................................. 17 1.2 The premenstrual disorders on trial: a case history ................................................... 20 i. The nineteenth century defence of 'disordered menstruation' ........................ 21 ii. Twentieth century developments and 'the PMS defendants' .......................... 25 iii. Premenstrual dysphoric disorder: a new label? ............................................. 35 1.3 'Premenstrual tensions' in the criminal law: a critique of the literature .................... 37 i. The medical question ..................................................................................... 39 ii. The legal question .......................................................................................... 43 iii. The gender issue ............................................................................................ 47 1.4 Telling stories about the premenstrual defendant: rewriting the narrative ............... 51 i. Telling a 'true' story ........................................................................................ 54 ii. Deconstructing the master narrative .............................................................. 58 iii. From narrative to normative .......................................................................... 60 1.5 Starting a new chapter? ............................................................................................. 64 CHAPTER TWO - The Medical Narrative and The Menstrual 'Mark' ................. 67 2.1 Proving a point about the premenstrual disorders? ................................................... 67 2.2 The premenstrual malady: a medical history ............................................................ 69 i. From 'the wandering womb' to 'the irritable uterus' ....................................... 70 ii. Premenstrual syndrome: a defining moment ................................................. 73 iii. Premenstrual dysphoric disorder and the DSM-5 .......................................... 77 2.3 Problematising the PMDD diagnosis? ...................................................................... 84 i. The medicalised narrative .............................................................................. 86 ii. The stigmatising label .................................................................................... 91 2.4 How to treat the premenstrual defendant? ................................................................ 97 2 CHAPTER THREE - Conceptualising the Premenstrual Defendant's Criminal Responsibility ..................................................... 100 3.1 In search of the premenstrual defendant's criminal responsibility .......................... 100 3.2 The doctrine of criminal responsibility: historically conceived .............................. 103 3.3 Hart's capacity paradigm ......................................................................................... 108 3.4 Criminal responsibility: a historically contingent concept...................................... 112 3.5 Lacey's criminal responsibility: the conceptual contours ....................................... 115 i. 'Ideas' ............................................................................................................ 118 ii. 'Interests'....................................................................................................... 121 iii. 'Institutions' .................................................................................................. 123 3.6 The co-evolution of capacity and character: a 'Jekyll and Hyde' story ................... 124 3.7 Advancing the narrative .......................................................................................... 130 CHAPTER FOUR - Characterising the Premenstrual Defendant's Criminal Responsibility ..................................................... 136 4.1 A 'trial of character' for the premenstrual defendant ............................................... 136 4.2 The characterful discourse of criminal responsibility ............................................. 139 4.3 Constructing the female character of the criminal law ........................................... 141 4.4 Making excuses for the female characters within the criminal law ....................... 148 i. Infanticide as a gender-specific defence ...................................................... 149 ii. Diminished responsibility as a 'gendered' defence ...................................... 154 4.5 The premenstrual defendant as a female character ................................................. 160 CHAPTER FIVE - Re-conceptualising Criminal Responsibility: The Case for 'Mitigated Criminal Liability' ................... 165 5.1 A new ending to the premenstrual defendant's story? ............................................. 165 5.2 Why should we excuse the premenstrual defendant? ............................................. 167 5.3 Rationalising why we should excuse the premenstrual defendant .......................... 171 i. A capacity-based rationale ........................................................................... 173 ii. A character-based rationale.......................................................................... 179 5.4 Mitigating the premenstrual defendant's criminal responsibiltiy ............................ 186 5.5 Making a new excuse for the premenstrual defendant ............................................ 200 CONCLUSION - A new plea for the premenstrual defendant…….. ..................... 203 BIBLIOGRAPHY…….. ............................................................................................. 211 Articles and Books…….. .................................................................................. 211 Newspaper and Online Reports…….. ............................................................... 228 Reports, Consultation Papers and Guidelines…….. ......................................... 229 Cases and Legislation…….. .............................................................................. 230 TOTAL WORD COUNT (Excl. prelims & bibliography) - 84, 125 3 Abstract The Premenstrual Defendant: Should She Be Held Fully Responsible For Her Criminal Actions? Premenstrual dysphoric disorder (PMDD) is a clinical condition that affects women during a specific phase of their menstrual cycle. Considered to be a more severe form of the premenstrual syndrome (PMS), PMDD can cause symptoms of depression, anxiety and irritability – to a debilitating degree. For decades, debate about the disorder has been mired in medical uncertainty and gender politics, meaning that the difficulties faced by PMDD sufferers have tended to be exacerbated by the socio-scientific complexities of their stigmatising premenstrual condition. This changed in 2013, when PMDD was recognised as a medical disorder and included in the DSM-5 as a depressive mental health condition affecting only women. Still the source of a degree of controversy, this new mental health classification acts as the catalyst for this thesis and prompts the question that doubles also as its title: should the premenstrual defendant be held fully responsible for her criminal actions? To answer that question, this thesis tells the story of the premenstrual defendant, as studied through the lens of a feminist legal narrative. Situating the premenstrual defendant’s narrative in its historical and contemporary context, this thesis explores the dynamic – between law, medicine and society at large – that has fundamentally shaped her story. Deconstructing the conceptual master narrative of criminal responsibility, it takes a Laceyan approach to assessing the ideas, interests and institutions that are implicated in the responsibility-attribution processes of the English criminal justice system. Casting a critical eye over the contemporary legal landscape, it also unpicks the construction of the premenstrual defendant as a female ‘character’ of the criminal law. Drawing on the premenstrual defendant’s contextualised narrative and bringing the socio-
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